Monday, December 22, 2014

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This month, Sony Pictures Entertainment became the subject of its own blockbuster hit: The Invasion of the Data Snatchers: A True Story. A massive cyber attack, by an unknown group using the moniker Guardians of Peace (did they register with Google?), stole thousands of internal Sony documents and emails, and then dumped them on the Internet.

There is no question that hacking into the studio’s data system is a serious crime. The Guardians’ criminal activity also included threats, some of them violent, if the studio released an upcoming comedy feature that asks, what if the CIA urged some movie people to eliminate North Korea’s baby-faced dictator?

But what about the news outlets, from the New York Times to Hollywood bloggers, that republished parts of the stolen Sony data? Are they also lawbreakers?

No, not if they didn’t actually steal the information. Should they be subject to civil lawsuits by those whose private information and communications were put on the Internet? Sony thinks they should. Or are they protected by the First Amendment protection of freedom of the press? Sony doesn’t think so. The entertainment giant hired a prominent lawyer, David Boies, to write to media outlets and threaten lawsuits if stolen information is used in any manner.

Most knowledgeable lawyers and law professors in the field, however, do not think much of Sony’s threats. UCLA law professor Eugene Volokh wrote on his Washington Post blog that Sony would likely not have a legal leg to stand on against the republishers of the stolen material, or at least the material they’ve published so far.

If reporting about and republishing stolen Internet material is not illegal and likely not a civil cause of action, then what is it? Is it news protected by the First Amendment? Does reporting on and republishing stolen information have the same constitutional protection as any other material?

These questions raise important ethical issues, but unlike the “bright line” of most laws, ethics dilemmas present few clear distinctions.

While I think that republishing or rebroadcasting stolen information in many cases is a breach of journalist ethics, I don’t want government imposing a legal standard of what information, stolen or not, should be allowed to be published. I think news outlets of any size, bloggers included, should adhere to a self-regulated standard.

And what would that standard or test be?

Film producer and screenwriter Aaron Sorkin, creator of The West Wing, The Newsroom, and numerous feature films, argued in a New York Times op-ed that unless the stolen material is “newsworthy,” for example the Pentagon Papers or facts about tobacco companies’ lies or an Enron-type scandal, stolen documents should not be published.

Sorkin clearly did not think the Sony documents were newsworthy. He called the publication of the stolen data “morally treasonous and spectacularly dishonorable.”

Who should decide whether any stolen material is “newsworthy”? Aaron Sorkin? The Guardians of Peace? You? Me?

Dean Baquet, the New York Times‘ executive editor, believes that only individual news outlets should decide what is “newsworthy.” In response to Sorkin’s editorial blast, Baquet wrote the following:

“As we’ve made clear, we have used documents surfaced by others. It would be a disservice to our readers to pretend these documents weren’t revealing and public.

“But the main issue, the main thing we consider, is how newsworthy the documents are. In that regard, I would say these aren’t the Pentagon Papers. And these aren’t Wikileaks.”

While it’s clear that Baquet believes individual media outlets should make their own republication decisions, he does seem to agree with Sorkin’s “newsworthy standard.” He just uses a different measuring stick to determine what is “newsworthy.” And so will just about every other news outlet, thus rendering the “newsworthy” standard nearly meaningless.

Michael Hiltzik, writing in the Los Angeles Times, maintains that the line on what should be published should not be as sharp as the Pentagon Papers on one side and everything else on the other. He argues that the Sony information is newsworthy because “it illuminates the thinking and actions of executives … of a major publicly traded corporation, one of the most influential entitles in one of our most important industries.”

While Hiltzik is concerned about the privacy rights of ordinary workers at Sony, he is not sympathetic to Sony or Hollywood in general. He writes, “Hollywood makes billions by manipulating reality … they’ve nurtured an entire cottage industry … People magazine, Entertainment Tonight, Oscar telecast, etc. — fed relentlessly by flacks and devoted to communicating the fantasy that Hollywood is one big happy family … Now that they’ve lost control of the PR, they’re mortified.”

While I don’t disagree with Hiltzik’s basic take on Hollywood, my concern is outweighed by my belief that people who steal information should be punished and not rewarded by publishing the data they’ve ripped off from others. And here is where I throw consistency of belief out the window and make my own exceptions to the general test of republication of stolen materials. (See my column on situational ethics.)

Decades ago, I applauded Daniel Ellsberg for stealing the Pentagon Papers that proved we were lied to about the Vietnam War. The subsequent publications by the media were clearly “newsworthy.”

What about a more current data theft issue that is clearly newsworthy — Edward Snowden’s theft of government documents that revealed massive government surveillance? If you use the “newsworthy” test, the documents clearly should have been published. But does “newsworthy” outweigh what the government and others argue is information that puts lives in danger?

These far more important ethical questions will be debated long after the current Sony hack story is relegated to just a passing mention on Entertainment Tonight. In my view, most of the material that has come out about Sony is just plain old gossip. It belongs in the trash bin of history to be deleted by one stroke key. Aaron Sorkin is right about at least one thing in this Sony hullabaloo; the Guardians of Peace are no Daniel Ellsberg.

Comments

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You’re overthinking this one. It is stolen material; therefore it is not only unethical but clearly illegal to publish that or any similar material. That includes Snowden’s idiocy. Look, you’ve got to know that stuff is stolen; if I knew a guy had stolen a watch he gave to me and I took said watch to a pawnbroker and sold it to him I would be guilty of abetting theft. Not so the pawnbroker, whom I had not apprised of the situation. But I would be guilty of theft. So would anyone who republishes stolen material.

It is not a sustainable argument that they did not know what it was or that it was stolen. It was obvious. Thus they are complicit in the crime, and there is no higher principle involved; even if it can be argued that there is, ethics demands it not be published for any reason.

Sony has the right to sue and collect from anyone who is complicit with the terrorist government of North Korea.

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Very poor analogy Nativeson. The government supposedly belongs to you and me. The data Snowden "stole" belongs to the taxpayer, not to government officials. Snowden performed a public service as it was the public's right to know.

We break and steal secrets of foreign governments all the time. Are you saying we should not use them? We've hacked into computers in Iran as well.

You are also putting the burden on the press of verifying anything they publish is not stolen. That is difficult to do.

At the other end of the spectrum is the government's arbitrary refusal to honor FOIA requests for what in fact is our information. (Freedom of Information Act)

Anyone, whether government or private, who uses the internet should start with the premise somewhere down stream someone can and will access those electrons.

If US tax dollars support government actions, we the people are owners of that information. Just ask Diane Feinstein. Timing of disclosure may deserve consideration, but truth will out eventually and honesty remains the best government policy.

It still remains unsolved who breached the SONY data - now hints are showing up it might have been an inside job and not North Korea after all. Imagine that. Who has been trying to manipulate the direction of SONY lately? Just like murder, the victim more likely than not knows the perpetrator.

It's not quite the correct question, Ben. Rather, let's ask what to do about a society with such an incapacity to guard data that ... we get Eric Snowden and Bradley Manning..and we will get plenty more. Why do people send such egregious and mean-spirited stuff on email?

The poster “Botany” wrote: “Very poor analogy Nativeson. The government supposedly belongs to you and me..” End of quotes.

Nope, Botany, I mean what I say and I say what I mean. Not backing down. Government information is not “your” information, no matter how much you pay in taxes. Neither does your tax money allow you to assume that government employees are your slaves. Nothing that the “government” owns or rents is yours, and the government owes you nothing, especially explanations about top secret data. This is NOT a democracy, it’s a Republic; not sure how many times that has to be said.

Stealing is stealing no matter what is stolen. In the case of Sony, the theft is of “intellectual property”. Just because it isn’t tangible doesn’t mean that it has no value. As for it being a “burden” for the “press” to verify what is or isn’t stolen, in this case that is absolute nonsense. Of course they knew it was stolen---how stupid do you think they can pretend to be? All the rest of the jargon about the fourth estate is BS---they’ve had a good run trashing celebrities and politicians, law enforcement and military—all while extolling the dregs of society; they are long overdue for a comeuppance.

So now it turns out it wasn't N. Korea, it was a disgruntled employee! Yeah, a read a bit of it and it's turgid and stupid, what else? I can't believe that utter transparency is always good, but on the other hand Snowden's leaks have helped oblige the US Gov't to clean up its act, at least to some extent. We just released more guys from Git'mo...etc. In some EU countries they are pushing for Snowden to get the Nobel Peace Prize.